The Shaming of America: Republican Congressmen v. The U.S. Constitution

They can't stand having an Afro-American being the President of the U.S.  From Day One, in January 2009, Senator Mitch McConnell declared that the Republicans had one mission: To insure that Obama is a one term President.  They and their supporters on the Right keep on questioning Obama's citizenship and his love of America.

Recently, former New York City mayor, Rudolph Giuliani, wondered in  public whether the President cherished America.  At a State of the Union message, a Republican Congressman heckled Obama while delivering that message to a joint session.  He shouted, "Liar."  Unprecedented.  Obama, unruffled looked at that offender and responded: "Thank You."

During campaigning in opposition to Obama, Senator McCain, Republican from Arizona, was asked a question from his audience.  The lady asking the question made in fact a comment attacking Obama.  She, on national TV, said: "He is an Arab."  In a subdued voice, McCain, with microphone now in hand, responded: "No!  He is not an Arab."  As if being an Arab in America was a grave national security breach.

Republicans in Congress, now in the majority in both houses, are shaming America.  Their attacks on Obama have turned into a violation of the U.S. Constitution, especially in the area of foreign affairs.

That document, crafted by geniuses in checks and balances, promulgated in 1787 "in order to form a more perfect union" gave the President primary responsibility for foreign affairs.

He is "Commander in Chief;" has power "by and with the advice and consent of the Senate, to make treaties;" "appoint ambassadors," with the Senate's "advice and consent," but with a simple majority of one vote; and make use of international agreements and compacts, at times with congressional participation.

On these bases, it has been asserted in case law that the President acts "as the sole organ of the Federal Government in the field of international relations." (Justice Sutherland of the U.S. Supreme Court, in the Curtiss-Wright case).

By comparison to the primacy of the Presidential role in foreign affairs, Congress, under Article I (Section 8) of the Constitution, has been accorded limited powers.  Congress can "provide for the common defense," can "declare war," and can "raise and support armies."

So primarily, Congress real prerogative lies in controlling the defense budget.  Its power to declare ware has been used in about 5 cases, in the course of more than two centuries.  Even in this foreign affairs domain, that power has been overwhelmed by the resort by the President to executive agreements which can speedily and privately commit the U.S. to action in foreign affairs without the need of any congressional involvement.  This is the essence of what is legally described "pure executive agreements." 

Also in regard to military action, the President may act unilaterally in actual hostilities against the U.S.  When this happens, the only authority left to Congress is its exercise of "the spending power."  But limiting the presidential power at times of hostilities can only be done by Congress through its enactment or non-enactment of military appropriations every two years.

The entire weight of legal constitutional scholarship is that the President has paramount power to represent the U.S. in day-to-day foreign relations.

Yet in the course of this month of March, Republican Congressmen have shamed the U.S., through shaming President Obama.  John Boener, Speaker of the House, on his own and in service of his narrow interests invites a foreign leader to address a joint "meeting" (not session) of Congress.

Prime Minister Netanyahu of Israel was thus afforded the unheard of luxury of having Congress become a theatrical prop for his electoral aspirations to secure a fourth term.  The repeated standing ovations on Capitol Hill for him represented a massive Congressional indictment of Obama's efforts, still ongoing, to secure a deal with Iran on its nuclear aspirations.

Not to be outdone by these Republican efforts to undermine Obama's primary authority in foreign affairs, a 37-year old Senator from Arkansas addresses a letter to the Iranian authorities.  The letter from Tom Cotton warned Tehran not to conclude a deal on the nuclear issue.  Why?  Because that inexperienced Senator, with only 65 days in the Senate, offered a crazy warning:  A deal with Obama could be cancelled by a successor.  In essence, Cotton is telling the Iranians and the world: "Commitment by our President is worth nothing."

Are these lawmakers or are they Clowns?  CLOWNS, in a failing roadside circus.  For they have:

• Infringed the Constitutional prerogatives of the U.S. President for whom foreign policy is a primary domain;
• Weakened the hands of the U.S. Secretary of State, John Kerry.  This is in the midst of international negotiations aiming at reaching a consensual deal with Iran and all the five members of the UN Security Council, plus Germany;
• Confirmed the perception in the Arab and Muslim world that Israel, in regard to the Likud attempt to have and hold a Greater Israel, from the Mediterranean to the Dead Sea, at the expense of the creation of a sovereign State of Palestine, has the backing of U.S. Congress;
• Ignored the fact that Israel is already a nuclear power, yet making, through the Likud in Israel, any nuclear program in the Arab Middle East, an existential threat;
• Made a great institution like U.S. Congress represent members who put their aspirations for keeping their seats ahead of the interests of "a more perfect union;"
• Hollowed out the incantations of America addressed to the outside world that when it comes to democracy and human rights, America, as Ronald Reagan put it, was akin to "a City on a Shining Hill;" and 
• Enhanced the trepidations of America's allies that trusting America, especially in this global war on terrorism, is a risky gamble.

Putting perceptions aside, here are some realities drawn from applicable international law:

• If and when made, the deal with Iran is subject to approval by the UN Security Council.  A scholar at Princeton University, Seyed Hussein Mousavian wrote on this subject an op ed in Al Monitor.  He aptly titled it: "On Iran deal, Republicans cut off their nose to spite their face."  In it he points out that: "If a deal is reached, the Security Council would pass a resolution enacting its terms, which Congress has no authority over rescinding."
• In his hallucinating letter, signed by 46 other Republican Senators, Senator Tom Cotton reminds Tehran of US sanctions.  In another swipe at Obama, he in effect states that even if a deal is reached, the US Senate could still maintain sanctions on Iran.

In opposition to a constitutional scholar called Obama, Cotton must have had real cotton in his ears during classes in international law.  Sanctions work only if several other States, especially neighbors and big Powers cooperate.  Our "Tommy," in his incongruous role of a volunteer advisor to the Islamic Republic of Iran, should know that in a deal internationally accepted, unilateral US sanctions would not have their intended effect.  

• War is no longer a U.S. option.  Especially in a fanciful war on Iran.  Just look at the administration having a difficult time in Congress just to agree to an authorization for the President to combat ISIS.  In reality, Obama needs no such authorization.  In his recent testimony before Congress, John Kerry cleared Obama's objective.  The Administration was calling on Congress only to speak "with a single powerful voice" at this critical juncture.

One of the four pillars of national sovereignty is the State's ability to conduct foreign affairs.  Today's Congress, with Republican majorities, is proving that the U.S. governmental system is plagued by more "checks" than "balances."  Retired U.S. Major General Paul Eaton said it to the point: "The idea of engaging directly with foreign entities on foreign policy is frankly a gross breach of discipline."

The rise of the extreme right in the US, including the Tea Party and the likes of Ted Cruz, Sara Palin, Michelle Bachman, and Bill O'Reilly, represents an endemic desire for endless war.  The lessons of the wars in Afghanistan (2002) and Iraq (2003), with their consequences of sectarianism in the Muslim world and the economic great recession in America, seem to have been lost.

It is ironic to have the great party of Lincoln turning into the party of war.  American efforts to "contain and degrade ISIS," even through an international coalition, seem to have spawned an internal American war.  A war against Obama.

A thoughtful commentator, Dr. Sayed Amin Shalaby, the Executive Director of the Egyptian Council for Foreign Affairs, recently quoted Zbigniew Brzezinski.  In his book entitled Strategic Vision: America and the Crisis of Global Power, Zbig, as per his nickname, as quoted by my friend Ambassador Shalaby, argues that America has to understand that its power abroad will increasingly depend on its ability to face its internal challenges.

Well said!!  A return by Congress to the U.S. Constitution is one such primordial necessity.  The shaming of America is an factor in international destabilization.

A great America President, a Democrat, a hundred years ago, wrote while at Princeton University, a great book.  It was a must read for me as a graduate student and a teaching assistant in the 1950s in America.  Titled Congressional Government, President Woodrow Wilson warned against congressional usurpation of presidential powers.

It was Wilson, a real Cassandra, who as U.S. President, crafted the League of Nations.  The Republican Senate of his day prevented America's membership in it.  The League, without the US in it, collapsed in 1939, ushering in the Second World War. In spite of that, a Wilson legacy is still standing: His advocacy  of people's right to self-determination.

An editorial in the New York Times of March 13, addressed this weird coup-like Congressional episodes.  It said: "The Republicans are the leaders in Congress.  But their efforts to undermine Mr. Obama in every matter are infecting ALL governance."

An op ed article in the same issue of the New York Times by Professor Kathleen Duval headlined "We Have a President for a Reason."  Denouncing that Republican power grab, it concluded: "It would be strange for a group of 21st Century senators to take advantage of the negotiations with Iran and return U.S. to an earlier age of cacophony and weakness."

Time Magazine of March 23 includes an article by Ian Bremmer, a foreign affairs columnist.  In it, he says: "This move undermines the credibility of future Presidents, Democrats and Republicans."

Yet the process of the shaming of America keeps on going in various directions: President Obama calls Netanyahu to chide him for declaring retreat from the promise of two-States.  But Boehner, Republican Speaker of the House, travels to Israel to stand by Netanyahu's side.

And on March 23, the craziest of U.S. Senators, Texan Republican Ted Cruz, announces his candidacy for President in 2016.  This icon of the Tea Party, in his totally unpromising bid for President, accuses Obama of communism.  Shameless!!